Study: Anti-Spam Legislation Could Harm Legitimate E-Mail Marketing

Spam may be annoying, but passing legislation to control it may do more harm than good, according to the latest policy analysis by the Cato Institute, a libertarian think tank. Besides, the analysis said, spam is another form of marketing and just because it is annoying does not mean it should be illegal.

"Spam legislation will create legal and regulatory hassles for mainstream companies, even as they increasingly embrace opt-in permission-based e-mail, which gives consumers the ability not to be contacted unless they want to be," wrote Clyde Wayne Crews in "Why Canning Spam Is a Bad Idea."

Crews, director of technologies at the Cato Institute, Washington, said regulating spam would have the side effect of impeding unsolicited e-mail that is legitimate marketing correspondence and may be welcomed by the recipient.

"Spam legislation kicks open the door to further regulation of business communications," he noted. "That is risky because marketing is essential to the growth of tomorrow's online services and technologies."

However, Ray Everett-Church, a privacy consultant and a lawyer for the anti-spam organization Coalition Against Unsolicited Commercial E-Mail, disagreed. He said that sometimes government regulation is needed to help regulate an industry that is out of control.

"This is the same myopic, 'we never met a regulation we liked' rhetoric the Cato has been peddling for years," he said. "When government steps in to remedy a breakdown in the marketplace, as is the case with spam, regulation is both reasonable and necessary."

Saying that not every piece of spam is "evil," Crews explained that sometimes commercial e-mail is welcome, even if the recipient did not specifically ask for it. He also noted that the problem of spam is not getting worse.

"Spam is just one form of marketing and is arguably less invasive than door-to-door selling or telemarketing," Crews said. "The real issue in dealing with spam is finding a way to shift the cost back to the spammer."

Crews also noted that mandating opt-in rules for e-mail could have serious implications for free speech. Spam is nothing more than advertising that proposes a transaction, he said.

Crews said that rather than the government enacting anti-spam legislation, the market should rigorously enforce self-regulation.

"The government can't stop spam," Crews said. "Regulation is likely to simply harm legitimate commerce. In trying to legislate against unsolicited mail, it is all too easy to hamper the flow of solicited mail, too."

Everett-Church called the Cato Institute's solution to the spam problem "simple minded" and said well-crafted legislation that shifts the monetary costs back to the spammer is needed to control the problem.

"Cato's simple-minded solution would result in giving advertisers a license to trespass on the private property -- the networks and mail servers -- of unwilling recipients," he said. "That's hardly a credible position for a libertarian organization to be taking."